Legal aspects of using a polygraph when working with personnel.

Legal aspects of using a polygraph when working with personnel.

Polygraph surveys (often incorrectly called a «lie detector») are gradually being introduced in a number of federal government agencies as a systemic measure for selecting and checking personnel when allowing them to conduct operational-search activities and work with information constituting a state secret.

A similar process of implementation is underway in the sphere of domestic private entrepreneurship.

With the development of market relations in Russia, the demand for qualified personnel has sharply increased, who, in addition to having professional knowledge and experience of working in modern conditions, must meet high requirements of loyalty to their employer.

Therefore, it is natural that in recent years in Moscow, St. Petersburg and a number of other cities in Russia the number of private companies, trading firms, security and other enterprises that, in the interests of ensuring commercial security, occasionally or regularly use the Polygraph when selecting and checking personnel has been growing.

And, as statistics show, a survey using a Polygraph (hereinafter referred to as the IUP) is an effective means of assessing the reliability of information previously obtained from a person, and allows revealing hidden information, especially in cases where it is impossible or difficult to obtain it by other, traditional means.

For corporate security purposes, IPRs can be applied in three directions.

The first is screening checks (from the English “screen” — to sift, to check for reliability) on a Polygraph of personnel hired for service; the second is preventive (periodic and/or selective) IPRs of working personnel, and the third is IPRs in the course of official investigations.

There is a reason

When hiring a person, human resources departments and security departments of commercial enterprises note that many facts from the life of almost any candidate cannot be revealed either by questioning his former employers, or by checking records, or during an interview:
• a former employer can, at best, tell about an employee who worked for him only what was noticed about him during his work, but he will not be able to say anything about the negative actions of his former employee if the latter was not caught in them;
• law enforcement agencies cannot say that a specific person has not committed criminal offenses: their conclusion “not on the books” only means that he was not detained at the scene of the crime and was not brought to justice;
• and, finally, no matter how long the face-to-face interview is, a security service representative will never be able to find out compromising facts about the candidate’s biography if the latter skillfully hides them. The only person who knows everything about the candidate is himself.

Therefore, many private companies in the USA, for example, consider the IPR one of the main methods of checking hired and working personnel. According to American experts, a polygraph test is the best way to let job candidates know that the company is serious about any violations. The IPR of hired personnel and periodic checks of working employees are the most effective means of preventing various types of theft: foreign practice has long shown that the level of security of an enterprise is higher, the more ruthless the selection of personnel is.

Polygraph users, both foreign and domestic, know well that the OIP significantly complements — and often greatly surpasses — other methods of finding out the truth and is also very cost-effective: Polygraph tests take much less time and are ultimately much cheaper than lengthy, routine personnel checks. In general, according to American experts, using the Polygraph, an entrepreneur increases the likelihood that the employees hired will be honest people by at least 25%.

Within the framework of the Constitution of the Russian Federation

The reader — a businessman who cares about the well-being and prosperity of his business — may have at least three questions:
• Is the use of the Polygraph in working with personnel a violation of human rights?
• Is the use of the Polygraph legitimate in the selection of personnel hired?
• Is it permissible to use the OIP when checking working personnel?
It can be confidently stated that in none of the areas of applied application of the Polygraph during hiring, or preventive OIP, or during official investigations, are human rights violated.

Article 2 of the Constitution of the Russian Federation states that “a person, his rights and freedoms are the highest value. Recognition, observance and protection of the rights and freedoms of a person and citizen is the duty of the State.” At the same time, the Basic Law of Russia states that “the exercise of the rights and freedoms of a person and citizen must not violate the rights and freedoms of others” (Article 17, Part 3).

The above-mentioned articles of the Constitution actually reflect the provision that society is obliged to strictly observe parity between the freedoms and rights of an individual to the inviolability of his personal life, on the one hand, and the rights of society to protect its interests and security from illegal and criminal encroachments of individuals, on the other. It is this principle, being international, that serves as the basis and is the explanation for why the OIP is used in more than 60 countries of the world, standing at various stages of democratic development, and the number of countries using the Polygraph is steadily growing.

The Polygraph and Labor Legislation

Now let us turn to the second question — the legitimacy of using the Polygraph in the selection of personnel hired for work.

The use of IPRs in the selection of personnel for hiring, first started by American entrepreneurs before the Second World War and introduced after the war into the practice of special services and law enforcement agencies, no longer requires justification of its effectiveness and practical usefulness. Therefore, the introduction of screening IPRs into the practice of selecting and checking personnel entering service in the units of the Ministry of Internal Affairs, the FSB and other «power structures» is recognized as completely justified, does not cause objections in society and is perceived with understanding by the candidates for service themselves.

But in addition to the «power structures», society has an extensive infrastructure for its life support, individual sectors of which are associated with the use of state secrets, the operation of hazardous industries, especially important or restricted facilities. It is clear that disruption of the normal functioning of such sectors creates a threat to the security of the State and the well-being of broad sections of the population. Therefore, personnel working in these sectors require no less rigor in selection and control than «people in uniform». However, the above does not exhaust the «risk zone» requiring a special procedure for the selection of personnel hired for work.The “risk zone” includes the activities of large, medium and small businesses that are interested in protecting their commercial interests, and, in particular, commercial and banking secrecy. The need for careful selection of personnel is especially relevant in those areas of entrepreneurship where there is a high risk of theft, forgery and fraud, there are large material assets, etc. It is obvious that any entrepreneur strives to have qualified, reliable employees at his disposal and does not want to see among them those who in the future can create a threat to his commercial enterprise.

The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) grants the employer the right to select personnel hired for work and directly states that “the establishment of differences, exceptions, preferences, as well as the restriction of the rights of employees that are determined by the requirements inherent in this type of work, established by federal laws, are not considered discrimination…” (Article 3, Part 3).

The need to conduct employee selection is also indicated by paragraph 11 of part 1 of article 81 of the Labor Code of the Russian Federation, according to which the Law gives the employer the right to terminate the Employment Contract in the event of “the employee providing the employer with forged documents or knowingly false information when concluding the Employment Contract.” Obviously, the employer, in order to avoid a conflict and subsequent termination of the Employment Contract for the specified reason, has the right to use any available means that do not contradict ethical standards to improve the quality of personnel selection, including the OIP.

The Law of the Russian Federation «On State Secrets» established that «admission of officials and citizens to state secrets requires: … written consent to the implementation of verification measures in relation to them by authorized bodies» (Article 21, Part 3). At the same time, the law specified that «the scope of verification measures depends on the degree of secrecy of the information to which the person being registered will be admitted», and «the purpose of conducting verification measures is to identify the grounds provided for in Article 22 of this Law» (Article 21, Part 4), that is, the grounds for refusing access to state secrets.

The Federal Law “On Commercial Secrets,” adopted in the summer of 2004, significantly expanded the legal basis for the application of OIPs in protecting the commercial interests of enterprises of various forms of ownership.

In particular, by introducing the “commercial secret regime”, this Law granted the owner of information constituting a commercial secret the right to “determine the procedure and conditions for access to this information” (Article 7, Part 3), establish a system of “monitoring compliance with such procedure” (Article 10, Part 1, Clause 2), and apply for these purposes, if necessary, any measures “that do not contradict the legislation of the Russian Federation” (Article 10, Part 4). At the same time, the Federal Law “On Commercial Secrets” directly indicated that “in order to protect confidential information, an employee is obliged to comply with the commercial secret regime established by the employer” (Article 11, Part 3, Clause 1).Thus, the above federal laws have provided a large group of employers dealing with state or commercial secrets and representing enterprises of various forms of ownership, a solid legal basis for the introduction of OIP into the system of measures to improve the quality of selection of hired and working personnel.

Both mandatory and voluntary

An assessment of the prospects for using the Polygraph in light of the above federal laws leads to the idea that in practice two types of OIP should be implemented:
1) mandatory, which are such both for the person being interviewed and for the institution (organization) in whose interests they are carried out;
2) voluntary, the right to perform which institutions (organizations) use at their own discretion, subject to the corresponding consent of the person being interviewed.

The above-mentioned federal laws also outlined in general terms the qualification criteria for the two types of OIP mentioned.

The process of forming the institute of mandatory OIP in Russia (although not always consistently) is currently underway: some categories of military personnel who have access to information constituting a state secret undergo this type of verification. Protecting the interests of society and the State, it seems right to expand the application of mandatory OIP to all employees who fall under the «Law on State Secrets», regardless of whether they are in government service or not, and, in particular, regardless of the form of ownership of the enterprise where they work.

The expediency of using the Polygraph in areas that go directly beyond the interests of society and the State as a whole is determined by the employer himself, regardless of the form of property he owns. Information constituting a commercial secret belongs to the employer, and he, at his own discretion, uses (or does not use) the right granted to him by Law to form one or another system for protecting his interests. Obviously, the use of the Polygraph in such conditions is voluntary on the part of the owner of information constituting a commercial secret.

Implementation process. Nuances

In order for voluntary OIPs to be implemented at enterprises covered by the Federal Law «On Commercial Secrets», a number of conditions must be met:
1) a commercial secret regime must be introduced at the enterprise;
2) the local legal normative act of the enterprise must establish the procedure and conditions for access to information constituting a commercial secret and, in particular, the procedure for applying the OIP when hiring;
3) the job responsibilities of the job candidate who is to undergo the IIP must be related to access to information constituting a commercial secret;
4) the employment contract must contain provisions according to which the employee assumes the obligation to undergo preventive (periodic or selective) IIP and/or IIP during official investigations.

Over the past few years, some commercial organizations (banks, holdings, private security companies, etc.) have been using the IPR when selecting personnel as an integral part of the psychological selection system. It is interesting to note that the advisability and admissibility of performing psychological selection of personnel when hiring does not currently raise objections in society. At the same time, if you think about the tasks that psychological testing and the IPR solve, and what information is obtained from a person as a result of these procedures, it is easy to notice that psychological testing intrudes into a person’s personal world to no lesser (and sometimes to a significantly greater extent). For example, during psychological testing, discussing with a specific person issues related to attitudes toward religion, interethnic relations, sexual orientation, etc. it is quite acceptable, while when performing OIP it is prohibited.

However, regardless of whether the use of the Polygraph is mandatory or voluntary for the employer, the latter must include in the questionnaire filled out by the employee upon admission to work (service), a provision of the following (approximate) content: “the employee is obliged, when filling out the questionnaire and subsequently concluding an Employment Contract, to provide the employer with original documents and true information about himself and his work activity, and also to undergo a survey using a Polygraph to confirm the absence of grounds that prevent the conclusion of an Employment Contract.”

The same provision can be reflected in the Employment Contract concluded with the employee. In those enterprises where a tradition of concluding collective agreements has been formed, it seems correct to duplicate this legal norm, for example, in the following wording: “when concluding an employment contract, the employee undertakes to provide the employer with original documents and true information and undertakes to undergo a survey using a polygraph to confirm the absence of grounds that prevent him from being hired.”

In general, it can be confidently stated that today there are no legal barriers to the widespread use of the IPR in the interests of personnel selection. This same provision fully applies to the third of the questions posed — the use of the IPR in relation to working personnel.

The Labor Code of the Russian Federation clearly establishes the rights and obligations of both parties to labor relations. On the one hand, the employee, among other things, “is obliged to: … observe labor discipline; treat the employer’s property with care; … immediately notify the employer or immediate supervisor of the occurrence of a situation that poses a threat … to the safety of the employer’s property” (Article 21, Part 2). For its part, “the employer has the right: … to demand that employees fulfill their work duties and treat the employer’s property with care …, comply with the internal labor regulations of the organization; bring employees to disciplinary and financial responsibility in the manner established by this Code and other federal laws; …” (Article 22, Part 1). The specified articles of the Labor Code of the Russian Federation, in fact, oblige the employee to cooperate with the employer in order to ensure the safety of the technological process and the commercial interests of the latter.

Therefore, in due accordance with the Labor Law, the inclusion in the Employment Contract of a provision that the employee «is obliged to actively cooperate in the official investigations conducted by the employer and, if necessary, undergo a survey using a Polygraph.»
It should be emphasized that the introduction of the proposed legal norms does not violate the fundamental principles of Labor legislation and, in particular, the spirit and letter of Article 9 of the Labor Code of the Russian Federation, according to which «employment contracts cannot contain conditions that reduce the level of rights and guarantees of employees established by Labor legislation.»

The introduction of the above provisions into employment contracts and local legal regulations makes the use of the OIP by state and non-state users completely legitimate within the framework of the current domestic legislation.
In this regard, the question — «To use or not to use a polygraph when working with personnel?» — is no longer of a legal nature, but purely emotional.

Kholodny Yu. I.,
Doctor of Law, Candidate of Psychological Sciences,
Head of Department, Institute of Criminalistics of the FSB of Russia